Sunday, December 14, 2008

Don't Defend It, Don't Mend It, End it

by digby

So, I see that Victoria Toensing is back in the Patrick Fitzgerald bashing business, reprising her complaint that he goes way too far in his public characterizations of criminal wrongdoing prior to trial. Coming from her, that's pretty rich, considering that she was Ken Starr's most ardent supporter and throughly supported the outrageously over-the-top bad Romance novel he presented to the pubic and the congress prior to impeachment and trial:

Whereas the President testified that "what began as a friendship came to include [intimate contact]," Ms. Lewinsky explained that the relationship moved in the opposite direction: "[T]he emotional and friendship aspects . . . developed after the beginning of our sexual relationship."

All the gasbags and right wing screamers thought that was perfectly legitimate prosecutorial conduct. But then, we are about to see some very interesting gyrations among the wingnut legal beagles as power shifts again in Washington. I think the one that interests me most is the case of Uber villager Stuart Taylor, one of the chief cable inquisitors in the Lewinsky scandal, who insisted that Clinton was a major criminal for lying about the "crime" discussed above and should be impeached and prosecuted for it.

Howie Kurtz wrote a typical insider piece about his ubiquitous presence on TV back in the day, revealing more about the guy than he probably realized:

Friends worry that Taylor, by so constantly and unambiguously assailing Clinton as a liar, may be tarnishing his hard-won reputation as a dispassionate legal analyst. The "NewsHour," concerned about the appearance of bias, has stopped using him to talk about Clinton and Lewinsky.

Says Taylor: "There's hardly anyone in the city of Washington who believes him. I don't see much point in pretending the evidence is in equipoise when it isn't."

[...]

The case that boosted Taylor into the media stratosphere involved not Monica Lewinsky but Paula Jones. When the former Arkansas clerk first accused Clinton in 1994 of having dropped his trousers and propositioned her in a Little Rock hotel room, Taylor was skeptical: "I thought Clinton was not owning up to what happened but I couldn't believe he did the whole thing. That would be too crude. She was not the most believable person in the world."

But in the summer of 1996, Taylor began work on what would become a 15,000-word manifesto about the case for American Lawyer. Brill says they both believed that "this would be the quintessential frivolous-litigation story."

Instead, Taylor concluded that Jones had a far stronger case against Clinton than journalists had let on, in part because of "class bias" and "the mainstream media's manifest disdain for Paula Jones." It also took aim at what Taylor now calls "the really flamboyant hypocrisy of many liberal feminists."

The contrarian piece instantly transformed the conventional media wisdom about Jones's sexual harassment suit, which Taylor believes had been colored by liberal bias. "There was a huge, pent-up, Clinton-is-getting-away-with-too-much feeling in the press that was suppressed during the election, partly because they didn't want to elect Dole," he says.

Your political establishment in all its glory, laid out before you, unadorned and shameless.

Taylor remains one of the most respected establishment legal journalists in the country, commonly called upon by gasbags of all stripes to comment in an "unbiased" fashion, particularly on the crossroads of politics and the legal system. I'm sure you'll be fascinated to hear about his latest crusade, which I think, once again, accurately describes the establishment mindset:

.... it would be a terrible mistake, in my view, to launch anything like the big, public criminal investigation that almost 60 House liberals, human rights groups, and others are seeking into allegations that John Yoo, Donald Rumsfeld, Dick Cheney, Colin Powell, Condi Rice, President Bush, and other top officials reportedly approved harsh interrogation methods including water-boarding (subject to limitations that have not yet been publicly identified). I suspect, without benefit of inside information, that Obama attorney general pick Eric Holder and other top officials of the incoming administration would agree with me.

First, such investigations and prosecutions would tear apart the country and blow up Obama's hopes of lifting us out of our multiple crises.

And who would be the people doing that? Why, the right, of course. This is their standard blackmail --- either do it our way or we'll tear this place apart. And because they've gotten away with such silly things as the General Betrayus hissy fit, we know that we'll be seeing Democrats rolling on their backs in total submission the minute the right starts keening and rending their garments over keeping the babies safe.

Taylor goes on to explain that people can't be held responsible for committing crimes if a lawyer told them it was legal and you can't hold lawyers responsible for telling them it was legal if they used a crackpot, untested legal theory to support it. So, heck --- all any president needs is a creative lawyer like Yoo and it's get out of jail free. (It's an interesting concept not fully anticipated by our naive founders, although Shakespeare might have seen the possibilities there.) Besides, Taylor says waterboarding isn't necessarily torture and the congress later legalized the whole thing anyway, so what's the problem? It was really just an honest mistake rather than an evil crime.

Taylor, like Toensing, originally supported the idea of the president issuing a blanket pardon and then instituting a truth commission, but that would tear apart the country too, so that's out. In fact, since the report about a potential WMD killing us all in a couple of years came out a couple of weeks ago, Taylor is convinced that Obama's going to have to keep those gloves off.

The man who believed that Paula Jones being allegedly sexually harrassed by the president years before he even took office demanded that the government come to a complete halt to investigate, is very impatient with the damned civil libertarians for their hysterical insistence on not torturing and illegally wiretapping:

But the civil libertarians' outrage does not stop there. Indeed, the prospect of anyone in the U.S. being inappropriately wiretapped, surveilled, or data-mined seems to stir the viscera of many Bush critics more than the prospect of thousands of people being murdered by terrorists. This despite the paucity of evidence that any innocent person anywhere has been seriously harmed in recent decades by governmental abuse of wiretapping, surveillance, or data mining.

On these and similar issues, Obama will have a choice: He can give the Left what it wants and weaken our defenses. Or he can follow the advice of his more prudent advisers, recognize that Congress, the courts, and officials including Attorney General Michael Mukasey have already moved to end the worst Bush administration abuses -- and kick the hard Left gently in the teeth. I'm betting that Obama is smart and tough enough to do the latter.

This is not to suggest that the president-elect will or should condone torture, bypass Congress, disregard international law and opinion, or adopt other Bush excesses that Obama and Attorney General-designate Eric Holder have assailed. But Obama does need to claim and use far more muscular powers to avert catastrophic loss of life and protect our security than most human-rights activists (and most Europeans) would allow.

[...]

And the only way ... is through aggressive use of wiretaps, data mining, searches, seizures, other forms of surveillance, detention, interrogation, subpoenas, informants, and, sometimes, group-based profiling. Many of these powers and techniques are still tightly restricted by the web of legal restraints and media-driven cultural norms that were developed in sunnier times to protect civil liberties -- and would be even more tightly restricted if civil libertarians had their way.

So, he not only shouldn't follow up on past abuses, he should work to loosen the restrictions even more. He goes on to advise that the way to do this is by making phony compromises, creating yet another hybrid court system that will not work and basically keeping everything the same, just in slightly different form.

Meanwhile, Newsweek is reporting that the "secret program" Jack Goldsmith and James Comey objected to was, as many suspected, a data mining program gathering and storing massive amounts of Americans' communication. They weren't upset by the intent so much as the fact that it violated the FISA requirement for warrants. (Hey, they're conservatives, so it's the best you can hope for and a good reason to have those laws there in the first place. If it hadn't been, they apparently wouldn't have objected to those activities on either constitutional or ethical grounds..)

Taylor contends that no American was harmed by civil liberties intrusions over the past few decades. Apparently, he doesn't think there's any harm in those NSA operators listening in on intimate phone conversations between soldiers in Iraq and their wives back home --- and passing around the "good parts." And despite what Taylor says, we know that the government spied on political protesters during the period after 9/11 and the history of the country suggests that it has done this many times in the past. Perhaps he thinks there's no harm in that --- he's so afraid of terrorism he's nearly fouling his trousers, after all. But less hysterical types think that the country can keep itself safe and adhere to the constitution at the same time.

In spite of Taylor's history of being a right wing hit man (or perhaps because of it) he's considered to one of those vaunted moderate, centrist, bipartisan straight shooting 'serious' people to whom respect must be paid. I suspect that his advice is fairly typical of that coming to Obama from the establishment. They all pay lip service to ending torture and Guantanamo and torture and illegal surveillance. But then they issue a dozen different reasons why all those things must be continued, perhaps with a little tweaking around the edges so it isn't quite so obviously crude and unpleasant. (Different colored jumpsuits or something ...)

I have thought that Gitmo and torture might be Obama's "Don't Ask Don't Tell" moment, in which the political establishment and national security apparatus lets the new Democrat know who's boss. This one's far more complicated than that and I think I may have reached for the wrong bumper sticker slogan. What the village is proposing on all these issues is not Don't Ask Don't Tell, it's "Mend It Don't End it," and with the news that people like Feinstein and Wyden are starting to hedge on language and perhaps open the door for some other ways of looking at this, along with House Intelligence Committee chairman Silvestre Reyes essentially agreeing with Stuart Taylor, I suspect the pressure is becoming quite intense to do it.

This is one of those issues, however, where Obama could kick "the left" in the teeth repeatedly, but it wouldn't shut them up no matter how much it hurt. I suspect it won't shut up the Europeans either or anyone else on the planet who thinks that torture and indefinite imprisonment under a kangaroo court is acceptable behavior for a global leader. And that's a problem. Obama's whole foreign policy at risk if this becomes a hugely contentious issue under his presidency.

This isn't the 90's when shills like Taylor held the only public platform, so it's not so simple anymore. Obama has to contend with civil liberties defenders who will publicly expose and fight against any "tweaking" that doesn't result in a return to the rule of law and respect for constitutional principles. I'm sorry to put it that starkly, but it's the truth. A fight over civil liberties is the last thing Obama needs, but he'll have one on his hands if he listens to people like Stuart Taylor.

Those with a well documented history of bad faith and partisan hostility, no matter how "respected" by the villagers, should be disregarded by the new administration, period. They have proven over and over again that they cannot be trusted and yet, because they've thrown a few bipartisan bones out there from time to time to create the illusion that they are fair 'n balanced, they draw even well intentioned Democrats into their web over and over gain with disastrous results --- often at the ballot box. (Bad intentioned Democrats just go along because they agree with them --- I'd put Reyes in that category.)

For all his obsequiousness toward Obama, Taylor's trap is that he has laid out a plan which must be adhered to in every detail or risk being seen as a capitulation to the allegedly hysterical lefties. Taylor will see Obama's deviation from the one true path as a personal rejection and an abandonment of his responsibilities (as Taylor's defined them) and turn on him viciously. As always, you must be avowedly with them.

There is no splitting the baby on this. You either respect the rule of the law and the constitution or you don't. Don't defend it, don't mend it, just end it.

(And some prosecutions would really hammer the point home in a way that nobody would misuderstand for a long time to come.)